Plaintiff Must Name and Serve Defendant Before he Dies
Post 5419
Plaintiff improperly named and joined Smothers as a defendant because he was already deceased at the time [Plaintiff] commenced this action.
In Parrisse Henderson v. Lazar Freight, LLC, et al., No. 1:25-cv-01316-KES-CDB, United States District Court, E.D. California (July 29, 2026) Parrisse Henderson sued Michael D. Smothers, Lazar Freight, LLC, Volkswagen Group of America, Inc., and U.S. Kymo, Inc. after a June 7, 2023 highway collision. Henderson alleged that her Volkswagen vehicle malfunctioned and stalled, after which Smothers, allegedly operating a vehicle owned by Lazar and Kymo in the course and scope of employment, rear-ended her vehicle.
Smothers had died on September 13, 2024, before Henderson filed the original complaint in state court on May 19, 2025 and before the action was removed to the Eastern District of California. Henderson later sought to substitute the Estate of Michael D. Smothers as a defendant.
LAW
Federal Rule of Civil Procedure 25(a)(1) permits substitution when a party dies and the claim is not extinguished, but only where the motion is timely and the proposed substitute is a proper party. Rule 25 is triggered by a formal suggestion of death and proper service on parties and non-party successors or representatives.
Under Ninth Circuit authority, a deceased person cannot be sued or joined as a party in that person’s own right, and an estate generally may act only through a representative.
California law preserves certain claims against a decedent and permits actions against a nominal estate but the plaintiff must show applicable insurance coverage and comply with the statutory procedure.
DISCUSSION AND ANALYSIS
In California, a cause of action for or against a person is not lost by reason of the person’s death, but survives subject to the applicable limitations period. If an injury giving rise to liability occurs before the death of the decedent, then the claim survives to the decedent’s estate.
The court reasoned that Smothers was an improper party because he died before the action began; therefore, Henderson could not cure the defect by substituting another party under Rule 25. Dismissal is independently warranted under Rule 4(m) because Smothers was never served, the deadline to serve had long expired, and Henderson had not shown good cause for an extension.
CONCLUSION
The court concluded Henderson had not satisfied California Probate Code section 550 because she failed to identify or prove any applicable insurance policy covering Smothers, failed to show that recovery would be limited to insurance proceeds, and acknowledged that no personal representative or successor had been appointed in the Texas probate proceeding.
Smothers is an Improper Party and Must Be Dismissed
In Plaintiff’s original complaint and the operative FAC, Plaintiff names Smothers as a Defendant. Plaintiff improperly named and joined Smothers as a defendant because he was already deceased at the time [Plaintiff] commenced this action.
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